Rosenfeld Susan. Encyclopedia of American Historical Documents

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Arrangement

Between the United States and Great Britain, between

Richard Rush, Esq., acting as Secretary of the Department

of State, and Charles Bagot, His Britannic Majesty’s Envoy

Extraordinary, &c.

The naval force to be maintained upon the American

lakes, by his majesty and the government of the United

States, shall henceforth be confined to the following ves-

sels on each side; that is—

On lake Ontario, to one vessel not exceeding one hun-

dred tons burden, and armed with one eighteen pound

cannon.

On the upper lakes, to two vessels, not exceeding like

burden, each, and armed with like force.

On the waters of lake Champlain, to one vessel not

exceeding like burden, and armed with like force.

All other armed vessels on these lakes shall be forth-

with dismantled, and no other vessels of war shall be there

built or armed.

If either party should hereafter be desirous of

annulling this stipulation, and should give notice to that

effect to the other party, it shall cease to be binding after

the expiration of six months from the date of such notice.

The naval force so to be limited shall be restricted to

such services as will, in no respect, interfere with the

proper duties of the armed vessels of the other party.

Source:

Landmark Documents in American History, Facts On File, Inc.

McCulloch v. Maryland, 1819

Decision of the U.S. Supreme Court in favor of the plaintiff,

James W. McCulloch, finding that the tax imposed by the state

of Maryland on the Bank of the United States was unconstitu-

tional, and that Congress did have the power to incorporate a

federal bank. In a carefully argued opinion, Chief Justice John

Marshall found that although the Constitution does not specif-

ically give the government the right to create a federal bank, it

nevertheless implies the granting of such a power. This argu-

ment confirmed the constitutional right of implied powers.

Chief Justice Marshall also found the tax unconstitutional,

since a state did not have the right to exercise its powers over

the federal government.

State banks that issued their own currency were already

in existence when Congress incorporated the second Bank of

the United States in 1816 (the first had been incorporated from

1791 to 1811). Many states resented having to compete with

the federal bank, which operated branches within the several

states. In an effort to discourage Marylanders from doing busi-

ness with banks other than the Bank of Maryland, the state leg-

islature in 1818 decided to tax all transactions not conducted

through the state bank. When James McCulloch, a cashier for

the Baltimore branch of the Bank of the United States, refused

to pay the tax, the state of Maryland sued him for lack of com-

pliance with state law. The case went to the Supreme Court the

following year, where it was heard over the course of nine

days. Among the distinguished lawyers who argued on behalf

of the plaintiff were William Pinkney and Daniel Webster.

The Court’s opinion is divided into two parts. First, in con-

sidering whether Congress can legally incorporate a bank,

Chief Justice Marshall treated the problem of determining the

extent and breadth of the powers the Constitution grants to

Congress in respect to those granted to the individual states,

taking into account the further delineation of states’ rights as

set forth in the Tenth Amendment. Marshall applied the doc-

trine of “implied powers,” concluding that while the Constitu-

tion imposes limits, it “must allow to the national legislature

that discretion . . . which will enable that body to perform the

high duties assigned to it, in the manner most beneficial to the

people.” The state of Maryland had argued that the Constitu-

tion does not grant Congress the right to form a corporation.

Chief Justice Marshall countered that, if the “end” Congress

seeks is “legitimate” and “within the scope of the constitution,”

then “all means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but consist with

the letter and spirit of the constitution, are constitutional.”

To the extent that

McCulloch

considered the broader

issue of federal power, it illustrates the political debate that

took shape after the Revolution between the Federalists and

the Anti-Federalists (later the Democratic-Republicans). Feder-

alists, such as Alexander Hamilton, the man behind the cre-

ation of a federal bank, favored a strong central government,

while Anti-Federalists, such as Thomas Jefferson, promoted the

rights of the individual states against a national government

that could potentially exceed the powers granted to it by the

Constitution. Within this political context the very issue of a

national bank had already been raised 28 years earlier, when

Hamilton first proposed the idea in Congress in 1791. (See

FIRST REPORT ON PUBLIC CREDIT

, 1790.) In deciding

McCulloch

the Supreme Court, led by Chief Justice Marshall, who was

himself a Federalist, opened the door for the expansion of gov-

ernment that the Anti-Federalists wanted to prevent.

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McCulloch v. State of Maryland et al.

March 7th, 1819

Marshall, Ch. J., delivered the opinion of the court.—In

the case now to be determined, the defendant, a sovereign

state, denies the obligation of a law enacted by the legisla-

552 ERA 4: Expansion and Reform

ture of the Union, and the plaintiff, on his part, contests

the validity of an act which has been passed by the legisla-

ture of that state. The constitution of our country, in its

most interesting and vital parts, is to be considered; the

conflicting powers of the government of the Union and of

its members, as marked in that constitution, are to be dis-

cussed; and an opinion given, which may essentially influ-

ence the great operations of the government. No tribunal

can approach such a question without a deep sense of its

important, and of the awful responsibility involved in its

decision. But it must be decided peacefully, or remain a

source of hostile legislation, perhaps, of hostility of a still

more serious nature; and if it is to be so decided, by this

tribunal alone can the decision be made. On the supreme

court of the United States has the constitution of our coun-

try devolved this important duty.

The first question made in the cause is—has congress

power to incorporate a bank? It has been truly said, that

this can scarcely be considered as an open question,

entirely unprejudiced by the former proceedings of the

nation respecting it. The principle now contested was

introduced at a very early period of our history, has been

recognised by many successive legislatures, and has been

acted upon by the judicial department, in cases of peculiar

delicacy, as a law of undoubted obligation.

It will not be denied, that a bold and daring usurpation

might be resisted, after an acquiescence still longer and

more complete that this. But it is conceived, that a doubt-

ful question, one on which human reason may pause, and

the human judgment be suspended, in the decision of

which the great principles of liberty are not concerned, but

the respective powers of those who are equally the repre-

sentatives of the people, are to be adjusted; if not put at

rest by the practice of the government, ought to receive a

considerable impression from that practice. An exposition

of the constitution, deliberately established by legislative

acts, on the faith of which an immense property has been

advanced, ought not to be lightly disregarded.

The power now contested was exercised by the first

congress elected under the present constitution. The bill

for incorporating the Bank of the United States did not

steal upon an unsuspecting legislature, and pass unob-

served. Its principle was completely understood, and was

opposed with equal zeal and ability. After being resisted,

first, in the fair and open field of debate, and afterwards,

in the executive cabinet, with as much persevering talent

as any measure has ever experienced, and being supported

by arguments which convinced minds as pure and as intel-

ligent as this country can boast, it became a law. The orig-

inal act was permitted to expire; but a short experience of

the embarrassments to which the refusal to revive it

exposed the government, convinced those who were most

prejudiced against the measure of its necessity, and

induced the passage of the present law. It would require

no ordinary share of intrepidity, to assert that a measure

adopted under these circumstances, was a bold and plain

usurpation, to which the constitution gave no counte-

nance. These observations belong to the cause; but they

are not made under the impression, that, were the ques-

tion entirely new, the law would be found irreconcilable

with the constitution.

In discussing this question, the counsel for the state of

the Maryland have deemed it of some importance, in the

construction of the constitution, to consider that instru-

ment not as emanating from the people, but as the act of

sovereign and independent states. The powers of the gen-

eral government, it has been said, are delegated by the

states, who alone are truly sovereign; and must be exer-

cised in subordination to the states, who alone possess

supreme dominion. It would be difficult to sustain this

proposition. The convention which framed the constitu-

tion was indeed elected by the state legislatures. But the

instrument, when it came from their hands, was a mere

proposal, without obligation, or pretensions to it. It was

reported to the then existing congress of the United States,

with a request that it might “be submitted to a convention

of delegates, chosen in each state by the people thereof,

under the recommendation of its legislature, for their

assent and ratification.” This mode of proceeding was

adopted; and by the convention by congress, and by the

state legislatures, the instrument was submitted to the peo-

ple. They acted upon it in the only manner in which they

can act safely, effectively and wisely, on such a subject, by

assembling in convention. It is true, they assembled in

their several states—and where else should they have

assembled? No political dreamer was ever wild enough to

think of breaking down the lines which separate the states,

and of compounding the American people into one com-

mon mass. Of consequence, when they act, they act in

their states. But the measures they adopt do not, on that

account, cease to be the measures of the people them-

selves, or become the measures of the state governments.

From these conventions, the constitution derives its whole

authority. The government proceeds directly from the

people; is “ordained and established,” in the name of the

people; and is declared to be ordained, “in order to form a

more perfect union, establish justice, insure domestic tran-

quillity, and secure the blessings of liberty to themselves

and to their posterity.” The assent of the states, in their

sovereign capacity, is implied, in calling a convention, and

thus submitting the instrument to the people. But the peo-

ple were at perfect liberty to accept or reject it; and their

act was final. It required not the affirmance, and could not

be negatived, by the state governments. The constitution,

Territorial Expansion, Political and Economic Developments, and International Relations 553

when thus adopted, was of complete obligation, and bound

the state sovereignties.

It has been said, that the people had already surren-

dered all their powers to the state sovereignties, and had

nothing more to give. But, surely, the question whether

they may resume and modify the powers granted to gov-

ernment, does not remain to be settled in this country.

Much more might the legitimacy of the general govern-

ment be doubted, had it been created by the states. The

powers delegated to the state sovereignties were to be

exercised by themselves, not by a distinct and independent

sovereignty, created by themselves. To the formation of a

league, such as was the confederation, the state sovereign-

ties were certainly competent. But when, “in order to form

a more perfect union,” it was deemed necessary to change

this alliance into an effective government, possessing great

and sovereign powers and acting directly on the people,

the necessity of referring it to the people, and of deriving

its powers directly from them, was felt and acknowledged

by all. The government of the Union, then (whatever may

be the influence of this fact on the case), is emphatically

and truly, a government of the people. In form, and in sub-

stance, it emanates from them. Its powers are granted by

them, and are to be exercised directly on them, and for

their benefit.

This government is acknowledged by all, to be one of

enumerated powers. The principle, that it can exercise

only the powers granted to it, would seem to apparent, to

have required to be enforced by all those arguments,

which its enlightened friends, while it was depending

before the people, found it necessary to urge; that princi-

ple is now universally admitted. But the question respect-

ing the extent of the powers actually granted, is

perpetually arising, and will probably continue to arise, so

long as our system shall exist. In discussing these ques-

tions, the conflicting powers of the general and state gov-

ernments must be brought into view, and the supremacy

of their respective laws, when they are in opposition,

must be settled.

If any one proposition could command the universal

assent of mankind, we might expect it would be this—that

the government of the Union, though limited in its powers,

is supreme within its sphere of action. This would seem to

result, necessarily, from its nature. It is the government of

all; its powers are delegated by all; it represents all, and

acts or all. Though any one state may be willing to control

its operations, no state is willing to allow others to control

them. The nation, on those subjects on which it can act,

must necessarily bind its component parts. But this ques-

tion is not left to mere reason: the people have, in express

terms, decided it by saying, this constitution, and the laws

of the United States, which shall be made in pursuance

thereof,” “shall be the supreme law of the land,” and by

requiring that the members of the state legislatures, and

the officers of the executive and judicial departments of

the states, shall take the oath of fidelity to it. The govern-

ment of the United States, then, though limited in its pow-

ers, is supreme; and its laws, when made in pursuance of

the constitution, form the supreme law of the land, “any-

thing in the constitution or laws of any state to the contrary

notwithstanding.”

Among the enumerated powers, we do not find that of

establishing a bank or creating a corporation. But there is

no phrase in the instrument which, like the articles of con-

federation, excludes incidental or implied powers; and

which requires that everything granted shall be expressly

and minutely described. Even the 10th amendment, which

was framed for the purpose of quieting the excessive jeal-

ousies which had been excited omits the word “expressly,”

and declares only, that the powers “not delegated to the

United States, nor prohibited to the states, are reserved to

the state or to the people;” thus leaving the question,

whether the particular power which may become the sub-

ject of contest, has been delegated to the one government,

or prohibited to the other, to depend on a fair construction

of the whole instrument. The men who drew and adopted

this amendment had experienced the embarrassments

resulting from the insertion of this word in the articles of

confederation, and probably omitted it, to avoid those

embarrassments. A constitution, to contain an accurate

detail of all the subdivisions of which its great powers will

admit, and of all the means by which they may be carried

into execution, would partake of the prolixity of a legal

code, and could scarcely be embraced by the human mind.

It would, probably, never be understood by the public. Its

nature, therefore, requires, that only its great outlines

should be marked, its important objects designated, and

the minor ingredients which compose those objects, be

deduced from the nature of the objects themselves. That

this idea was entertained by the framers of the American

constitution, is not only to be inferred from the nature of

the instrument, but from the language. Why else were

some of the limitations, found in the 9th section of the 1st

article, introduced? It is also, in some degree, warranted,

by their having omitted to use any restrictive term which

might prevent its receiving a fair and just interpretation. In

considering this question, then, we must never forget that

it is a constitution we are expounding.

Although, among the enumerated powers of govern-

ment, we do not find the word “bank” or “incorporation,”

we find the great powers, to lay and collect taxes; to bor-

row money; to regulate commerce; to declare and conduct

a war; and to raise and support armies and navies. The

sword and the purse, all the external relations, and no

inconsiderable portion of the industry of the nation, are

intrusted to its government. It can never be pretended,

554 ERA 4: Expansion and Reform

that these vast powers draw after them others of inferior

importance, merely because they are inferior. Such an idea

can never be advanced. But it may with great reason be

contended, that a government, intrusted with such ample

powers, on the due execution of which the happiness and

prosperity of the nation so vitally depends, must also be

intrusted with ample means for their execution. The power

being given, it is the interest of the nation to facilitate its

execution. It can never be their interest, and cannot be

presumed to have been their intention, to clog and embar-

rass its execution, by withholding the most appropriate

means. Throughout this vast republic, from the St. Croix to

the Gulf of Mexico, from the Atlantic to the Pacific, rev-

enue is to be collected and expended, armies are to be

marched and supported. The exigencies of the nation may

require, that the treasure raised in the north should be

transported to the south, that raised in the east, conveyed

to the west, or that this order should be reversed. Is that

construction of the constitution to be preferred, which

would render these operations difficult, hazardous and

expensive? Can we adopt that construction (unless the

words imperiously require it), which would impute to the

framers of that instrument, when granting these powers

for the public, the intention of impeding their exercise, by

withholding a choice of means? If, indeed, such be the

mandate of the constitution, we have only to obey; but that

instrument does not profess to enumerate the means by

which the powers it confers may be executed; nor does it

prohibit the creation of a corporation, if the existence of

such being be essential, to he beneficial exercise of those

powers. It is, then, the subject of fair inquiry, how far such

means may be employed.

It is not denied, that the powers given to the govern-

ment imply the ordinary means of execution. That, for

example, of raising revenue, and applying it to national

purposes, is admitted to imply the power of conveying

money from place to place, as the exigencies of the nation

may require, and of employing the usual means of con-

veyance. But it is denied, that the government has its

choice of means; or, that it may employ the most conve-

nient means, if, to employ them, it be necessary to erect a

corporation. On what foundation does this argument rest?

On this alone: the power of creating a corporation, is one

appertaining to sovereignty, and is not expressly conferred

on congress. This is true. But all legislative powers apper-

tain to sovereignty. The original power of giving the law on

any subject whatever, is a sovereign power; and if the gov-

ernment of the Union is restrained from creating a corpo-

ration, as a means for performing its functions, on the

single reason that the creation of a corporation is an act of

sovereignty; if the sufficiency of this reason be acknowl-

edged, there would be some difficulty in sustaining the

authority of congress to pass other laws for the accom-

plishment of the same objects. The government which has

a right to do an act, and has imposed on it, the duty of per-

forming that act, must, according to the dictates of reason,

be allowed to select the means; and those who contend

that it may not select any appropriate means, that one par-

ticular mode of effecting the object is excepted, take upon

themselves the burden of establishing that exception.

The creation of a corporation, it is said, appertains to

sovereignty. This is admitted. But to what portion of

sovereignty does it appertain? Does it belong to one more

than to another? In America, the powers of sovereignty are

divided between the government of the Union, and those

of the states. They are each sovereign, with respect to the

objects committed to it, and neither sovereign, with

respect to the objects committed to the other. We cannot

comprehend that train of reasoning, which would main-

tain, that the extent of power granted by the people is to

be ascertained, not by the nature and terms of the grant,

but by its date. Some state constitutions were formed

before, some since that of the United States. We cannot

believe, that their relation to each other is in any degree

dependent upon this circumstance. Their respective pow-

ers must, we think, be precisely the same, as if they had

been formed at the same time. Had they been formed at

the same time, and had the people conferred on the gen-

eral government the power contained in the constitution,

and on the states the whole residuum of power, would it

have been asserted, that the government of the Union was

not sovereign, with respect to those objects which were

intrusted to it, in relation to which its laws were declared

to be supreme? If this could not have been asserted, we

cannot well comprehend the process of reasoning which

maintains, that a power appertaining to sovereignty cannot

be connected with that vast portion of it which is granted

to the general government, so far as it is calculated to sub-

serve the legitimate objects of that government. The

power of creating a corporation, though appertaining to

sovereignty, is not, like the power of making war, or levy-

ing taxes, or of regulating commerce, a great substantive

and independent power, which cannot be implied as inci-

dental to other powers, or used as a means of executing

them. It is never the end of which other powers are exer-

cised, but a means by which other objects are accom-

plished. No contributions are made to charity, for the sake

of an incorporation, but a corporation is created to admin-

ister the charity; no seminary of learning is instituted, in

order to be incorporated, but the corporate character is

conferred to subserve the purposes of education. No city

was ever built, with the sole object of being incorporated,

but is incorporated as affording the best means of being

well governed. The power of creating a corporation is

never used for its own sake, but for the purpose of effect-

ing something else. No sufficient reason is, therefore, per-

Territorial Expansion, Political and Economic Developments, and International Relations 555

ceived, why it may not pass as incidental to those powers

which are expressly given, if it be a direct mode of execut-

ing them.

But the constitution of the United States has not left

the right of congress to employ the necessary means, for

the execution of the powers conferred on the government,

to general reasoning. To its enumeration of powers is

added, that of making “all laws which shall be necessary

and proper, for carrying into execution the foregoing pow-

ers, and all other powers vested by this constitution, in the

government of the United States, or in any department

thereof.” The counsel for the state of Maryland have urged

various arguments, to prove that this clause, though, in

terms, a grant of power, is not so, in effect; but is really

restrictive of the general right, which might otherwise be

implied, of selecting means for executing the enumerated

powers. In support of this proposition, they have found it

necessary to contend, that this clause was inserted for the

purpose of conferring on congress the power of making

laws. That, without it, doubts might be entertained,

whether congress could exercise its powers in the form of

legislation.

But could this be the object for which it was inserted?

A government is created by the people, having legislative,

executive and judicial powers. Its legislative powers are

vested in a congress, which is to consist of a senate and

house of representatives. Each house may determine the

rule of its proceedings; and it is declared, that every bill

which shall have passed both houses, shall, before it

becomes a law, be presented to the president of the United

States. The 7th section describes the course of proceed-

ings, by which a bill shall become a law; and, then, the 8th

section enumerates the powers of congress. Could it be

necessary to say, that a legislature should exercise legisla-

tive powers, in the shape of legislation? After allowing each

house to prescribe its own course of proceeding, after

describing the manner in which a bill should become a law,

would it have entered into the mind of a single member of

the convention, that an express power to make laws was

necessary, to enable the legislature to make them? That a

legislature, endowed with legislative powers, can legislate,

is a proposition too self-evident to have been questioned.

But the argument on which most reliance is placed, is

drawn from that peculiar language of this clause. Congress

is not empowered by it to make all laws, which may have

relation to the powers confered on the government, but

such only as may be “necessary and proper” for carrying

them into execution. The word “necessary” is considered

as controlling the whole sentence, and as limiting the right

to pass laws for the execution of the granted powers, to

such as are indispensable, and without which the power

would be nugatory. That it excludes the choice of means,

and leaves to congress, in each case, that only which is

most direct and simple.

Is it true, that this is the sense in which the word “nec-

essary” is always used? Does it always import an absolute

physical necessity, so strong, that one thing to which

another may be termed necessary, cannot exist without

that other? We think it does not. If reference be had to its

use, in the common affairs of the word, or in approved

authors, we find that it frequently imports no more than

that one thing is convenient, or useful, or essential to

another. To employ the means necessary to an end, is gen-

erally understood as employing any means calculated to

produce the end, and not as being confined to those single

means, without which the end would be entirely unattain-

able. Such is the character of human language, that no

word conveys to the mind, in all situations, one single def-

inite idea; and nothing is more common than to use words

in a figurative sense. Almost all compositions contain

words, which, taken in a their rigorous sense, would con-

vey a meaning different from that which is obviously

intended. It is essential to just construction, that many

words which import something excessive, should be

understood in a more mitigated sense—in that sense

which common usage justifies. The word “necessary” is of

this description. It has not a fixed character, peculiar to

itself. It admits of all degrees of comparison; and is often

connected with other words, which increase or diminish

the impression the mind receives of the urgency it imports.

A thing may be necessary, very necessary, absolutely or

indispensably necessary. To no mind would the same idea

be conveyed by these several phrases. The comment on

the word is well illustrated by the passage cited at the bar,

from the 10th section of the 1st article of the constitution.

It is, we think, impossible to compare the sentence which

prohibits a state from laying “imposts, or duties on imports

or exports, except what may be absolutely necessary for

executing its inspection laws,” with that which authorizes

congress” to make all laws which shall be necessary and

proper for carrying into execution” the powers of the gen-

eral government, without feeling a conviction, that the

convention understood itself to change materially the

meaning of the word “necessary,” by prefixing the word

“absolutely.” This word, then, like others, is used in various

senses; and, in its construction, the subject, the context,

the intention of the person using them are all to be taken

into view.

Let this be done in the case under consideration. The

subject is the execution of those great powers on which the

welfare of a nation essentially depends. It must have been

the intention of those who gave these powers, to insure, so

far as human prudence could insure, their beneficial exe-

cution. This could not be done, by confiding the choice of

556 ERA 4: Expansion and Reform

means to such narrow limits as not to leave it in the power

of congress to adopt any which might be appropriate, and

which were conducive to the end. This provision is made

in a constitution, intended to endure for ages to come, and

consequently, to be adapted to the various crises of human

affairs. To have prescribed the means by which govern-

ment should, in all future time, execute its powers, would

have been to change, entirely, the character of the instru-

ment, and give it the properties of a legal code. It would

have been an unwise attempt to provide, by immutable

rules, for exigencies which, if foreseen at all, must have

been seen dimly, and which can be best provided for as

they occur. To have declared, that the best means shall not

be used, but those alone, without which the power given

would be nugatory, would have been to deprive the legis-

lature of the capacity to avail itself of experience, to exer-

cise its reason, and to accommodate its legislation to

circumstances.

If we apply this principle of construction to any of the

powers of the government, we shall find it so pernicious in

its operation that we shall be compelled to discard it. The

powers vested in congress may certainly be carried into

execution, without prescribing an oath of office. The

power to exact this security for the faithful performance of

duty, is not given, nor is it indispensably necessary. The dif-

ferent departments may be established; taxes may be

imposed and collected; armies and navies may be raised

and maintained; and money may be borrowed, without

requiring an oath of office. It might be argued, with as

much plausibility as other incidental powers have been

assailed, that the convention was not unmindful of this

subject. The oath which might be exacted—that of fidelity

to the constitution—is prescribed, and no other can be

required. Yet, he would be charged with insanity, who

should contend, that the legislature might not superadd, to

the oath directed by the constitution, such other oath of

office as its wisdom might suggest.

So, with respect to the whole penal code of the United

States: whence arises the power to punish, in cases not

prescribed by the constitution? All admit, that the govern-

ment may, legitimately, punish any violation of its laws; and

yet, this is not among the enumerated powers of congress.

The right to enforce the observance of law, by punishing its

infraction, might be denied, with the more plausibility,

because it is expressly given in some cases.

Congress is empowered “to provide for the punish-

ment of counterfeiting the securities and current coin of

the United States,” and “to define and punish piracies and

felonies committed on the high seas, and offences against

the law of nations.” The several powers of congress may

exist, in a very imperfect state, to be sure, but they may

exist and be carried into execution, although no punish-

ment should be inflicted, in cases where the right to pun-

ish is not expressly given.

Take, for example, the power “to establish post-offices

and post-roads.” This power is executed, by the single act

of making the establishment. But, from this has been

inferred the power and duty of carrying the mail along the

post-road, from one post-office to another. And from this

implied power, has again been inferred the right to punish

those who steal letters from the post-office, or rob the

mail. It may be said, with some plausibility, that the right

to carry the mail, and to punish those who rob it, is not

indispensably necessary to the establishment of a post-

office and post-road. This right is indeed essential to the

beneficial exercise of the power, but not indispensably

necessary to its existence. So, of the punishment of the

crimes of stealing or falsifying a record or process of a

court of the United States, or of perjury in such court. To

punish these offences, is certainly conducive to the due

administration of justice. But court may exist, and may

decide the causes brought before them, though such

crimes escape punishment.

The baneful influence of this narrow construction on

all the operations of the government, and the absolute

impracticability of maintaining it, without rendering the

government incompetent to its great objects, might be

illustrated by numerous examples drawn from the consti-

tution, and from our laws. The good sense of the public has

pronounced, without hesitation, that the power of punish-

ment appertains to sovereignty, and may be exercised,

whenever the sovereign has a right to act, as incidental to

his constitutional powers. It is a means for carrying into

execution all sovereign powers, and may be used, although

not indispensably necessary. It is a right incidental to the

power, and conducive to its beneficial exercise.

If this limited construction of the word “necessary”

must be abandoned, in order to punish, whence is derived

the rule which would reinstate it, when the government

would carry its powers into execution, by means not vin-

dictive in their nature? If the word “necessary” means

“needful,” “requisite,” “essential,” “conducive to,” in order

to let in the power of punishment for the infraction of law;

why is it not equally comprehensive, when required to

authorize the use of means which facilitate the execution

of the powers of government, without the infliction of pun-

ishment?

In ascertaining the sense in which the word “neces-

sary” is used in this clause of the constitution, we may

derive some aid from that with which it is associated.

Congress shall have power “to make all laws which shall be

necessary and proper to carry into execution” the powers

of the government. If the word “necessary” was used in

that strict and rigorous sense for which the counsel for the

Territorial Expansion, Political and Economic Developments, and International Relations 557

state of Maryland contend, it would be an extraordinary

departure from the usual course of the human mind, as

exhibited in composition, to add a word, the only possible

offect of which is, to qualify that strict and rigorous mean-

ing; to present to the mind the idea of some choice of

means of legislation, not strained and compressed within

the narrow limits for which gentlemen contend.

But the argument which most conclusively demon-

strates the error of the construction contended for by the

counsel for the state of Maryland, is founded on the inten-

tion of the convention, as manifested in the whole clause.

To waste time and argument in proving that, without it,

congress might carry its powers into execution, would be

not much less idle, than to hold a lighted taper to the sun.

As little can it be required to prove, that in the absence of

this clause, congress would have some choice of means.

That it might employ those which, in its judgment, would

most advantageously effect the object to be accomplished.

That any means adapted to the end, any means which

tended directly to the execution of the constitutional pow-

ers of the government, were in themselves constitutional.

This clause, as construed by the state of Maryland, would

abridge, and almost annihilate, this useful and necessary

right of the legislature to select its means. That this could

not be intended, is, we should think, had it not been

already controverted, too apparent for controversy.

We think so for the following reasons: 1st. The clause

is placed among the powers of congress, not among the

limitations on those powers. 2d. Its terms purport to

enlarge, not to diminish the powers vested in the govern-

ment. It purports to be an additional power, not a restric-

tion on those already granted. No reason has been, or can

be assigned, for thus concealing an intention to narrow the

discretion of the national legislature, under words which

purport to enlarge it. The framers of the constitution

wished its adoption, and well knew that it would be endan-

gered by its strength, not by its weakness. Had they been

capable of using language which would convey to the eye

one idea, and, after deep reflection, impress on the mind,

another, they would rather have disguised the grant of

power, than its limitation. If, then, their intention had

been, by this clause, to restrain the free use of means

which might otherwise have been implied, that intention

would have been inserted in another place, and would

have been expressed in terms resembling these. “In carry-

ing into execution the foregoing powers, and all others,”

&c., “no laws shall be passed but such as are necessary and

proper.” Had the intention been to make this clause

restrictive, it would unquestionably have been so in form

as well as in effect.

The result of the most careful and attentive consider-

ation bestowed upon this clause is, that if it does not

enlarge, it cannot be construed to restrain the powers of

congress, or to impair the right of the legislature to exer-

cise its best judgment in the selection of measures to carry

into execution the constitutional powers of the govern-

ment. If no other motive for its insertion can be suggested,

a sufficient one is found in the desire to remove all doubts

respecting the right to legislate on that vast mass of inci-

dental powers which must be involved in the constitution,

if that instrument be not a splendid bauble. We admit, as

all must admit, that the powers of the government are lim-

ited, and that its limits are not to be transcended. But we

think the sound construction of the constitution must allow

to the national legislature that discretion, with respect to

the means by which the powers it confers are to be carried

into execution, which will enable that body to perform the

high duties assigned to it, in the manner most beneficial to

the people. Let the end be legitimate, let it be within the

scope of the constitution, and all means which are appro-

priate, which are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the con-

stitution, are constitutional.

That a corporation must be considered as a means not

less usual, not of higher dignity, not more requiring a par-

ticular specification than other means, has been suffi-

ciently proved. If we look to the origin of corporations, to

the manner in which they have been framed in that gov-

ernment from which we have derived most of our legal

principles and ideas, or to the uses to which they have

been applied, we find no reason to suppose, that a consti-

tution, omitting, and wisely omitting, to enumerate all the

means for carrying into execution the great powers vested

in government, ought to have specified this. Had it been

intended to grant this power, as one which should be dis-

tinct and independent, to be exercised in any case what-

ever, it would have found a place among the enumerated

powers of the government. But being considered merely as

a means, to be employed only for the purpose of carrying

into execution the given powers, there could be no motive

for particularly mentioning it.

The propriety of this remark would seem to be gener-

ally acknowledged, by the universal acquiescence in the

construction which has been uniformly put on the 3d sec-

tion of the 4th article of the constitution. The power to

“make all needful rules and regulations respecting the ter-

ritory or other property belonging to the United States,” is

not more comprehensive, than the power “to make all laws

which shall be necessary and proper for carrying into exe-

cution” the powers of the government. Yet all admit the

constitutionality of a territorial government, which is a cor-

porate body.

If a corporation may be employed, indiscriminately

with other means, to carry into execution the powers of the

558 ERA 4: Expansion and Reform

government, no particular reason can be assigned for

excluding the use of a bank, if required for its fiscal opera-

tions. To use one, must be within the discretion of

congress, if it be an appropriate mode of executing the

powers of government. That it is a convenient, a useful,

and essential instrument in the prosecution of its fiscal

operations, is not now a subject of controversy. All those

who have been concerned in the administration of our

finances, have concurred in representing its importance

and necessity; and so strongly have they been felt, that

statesmen of the first class, whose previous opinions

against it had been confirmed by every circumstances

which can fix the human judgment, have yielded those

opinions to the exigencies of the nation. Under the con-

federation, congress, justifying the measure by its neces-

sity; transcended, perhaps, its powers, to obtain the

advantage of a bank; and our own legislation attests the

universal conviction of the utility of this measure. The time

has passed away, when it can be necessary to enter into any

discussion, in order to prove the importance of this instru-

ment, as a means to effect the legitimate objects of the

government.

But were its necessity less apparent, none can deny its

being an appropriate measure; and if it is, the decree of its

necessity, as has been very justly observed, is to be dis-

cussed in another place. Should congress, in the execution

of its powers, adopt measures which are prohibited by the

constitution; or should congress, under the pretext of exe-

cuting its powers, pass laws for the accomplishment of

objects not intrusted to the government; it would become

the painful duty of this tribunal, should a case requiring

such a decision come before it, to say, that such an act was

not the law of the land. But where the law is not prohib-

ited, and is really calculated to effect any of the objects

intrusted to the government, to undertake here to inquire

into the decree of its necessity, would be to pass the line

which circumscribes the judicial department, and to tread

on legislative ground. This court disclaims all pretensions

to such a power.

After this declaration, it can scarcely be necessary to

say, that the existence of state banks can have no possible

influence on the question. No trace is to be found in the

constitution, of an intention to create a dependence of the

government of the Union on those of the states, for the

execution of the great powers assigned to it. Its means are

adequate to its ends; and on those means alone was it

expected to rely for the accomplishment of its ends. To

impose on it the necessity of resorting to means which it

cannot control, which another government may furnish or

withhold, would render its course precarious, the result of

its measures uncertain, and create a dependence on other

governments, which might disappoint its most important

designs, and is incompatible with the language of the con-

stitution. But were it otherwise, the choice of means

implies a right to choose a national bank in preference to

state banks, and congress alone can make the election.

After the most deliberate consideration, it is the unan-

imous and decided opinion of this court, that the act to

incorporate the Bank of the United States is a law made in

pursuance of the constitution, and is a part of the supreme

law of the land.

The branches, proceeding from the same stock, and

being conducive to the complete accomplishment of the

object, are equally constitutional. It would have been

unwise, to locate them in the charter, and it would be

unnecessarily inconvenient, to employ the legislative

power in making those subordinate arrangements. The

great duties of the bank are prescribed; those duties

require branches; and the bank itself may, we think, be

safely trusted with the selection of places where those

branches shall be fixed; reserving always to the govern-

ment the right to require that a branch shall be located

where it may be deemed necessary.

It being the opinion of the court, that the act incorpo-

rating the bank is constitutional; and that the power of

establishing a branch in the state of Maryland might be

properly exercised by the bank itself, we proceed to

inquire—

2. Whether the state of Maryland may, without violat-

ing the constitution, tax that branch? That the power of

taxation is one of vital importance; that it is retained by the

states; that it is not abridged by the grant of a similar power

to the government of the Union; that it is to be concur-

rently exercised by the two governments—are truths

which have never been denied. But such is the paramount

character of the constitution, that its capacity to withdraw

any subject from the action of even this power, is admitted.

The states are expressly forbidden to lay any duties on

imports or exports, except what may be absolutely neces-

sary for executing their inspection laws. If the obligation of

this prohibition must be conceded—if it may restrain a

state from the exercise of its taxing power on imports and

exports—the same paramount character would seem to

restrain, as it certainly may restrain, a state from such

other exercise of this power, as is in its nature incompati-

ble with, and repugnant to, the constitutional laws of the

Union. A law, absolutely repugnant to another, as entirely

repeals that other as if express terms of repeal were used.

On this ground, the counsel for the bank place its claim to

be exempted from the power of a state to tax its operations.

There is no express provision for the case, but the claim

has been sustained on a principle which so entirely per-

vades the constitution, is so intermixed with the materials

which compose it, so interwoven with its web, so blended

Territorial Expansion, Political and Economic Developments, and International Relations 559

with its texture, as to be incapable of being separated from

it, without rending it into shreds. This great principle, is,

that the constitution and the laws made in pursuance

thereof are supreme; that they control the constitution and

laws of the respective states, and cannot be controlled by

them. From this, which may be almost termed an axiom,

other propositions are deduced as corollaries, on the truth

or error of which, and on their application to this case, the

cause has been supposed to depend. These are, 1st. That a

power to create implies a power to preserve: 2d. That a

power to destroy, if wielded by a different hand, is hostile

to, and incompatible with these powers to create and to

preserve: 3d. That where this repugnancy exists, that

authority which is supreme must control, not yield to that

over which it is supreme.

These propositions, as abstract truths, would, perhaps,

never be converted. Their application to this case, how-

ever, has been denied; and both in maintaining the affir-

mative and the negative, a splendor of eloquence, and

strength of argument, seldom, if ever, surpassed, have

been displayed. The power of congress to create, and of

course, to continue, the bank, was the subject of the pre-

ceding part of this opinion; and is no longer to be consid-

ered as questionable. That the power of taxing it by the

states may be exercised so as to destroy it, is too obvious to

be denied. But taxation is said to be an absolute power,

which acknowledges no other limits than those expressly

prescribed in the constitution, and like sovereign power of

every other description, is intrusted to the discretion of

those who use it. But the very terms of this argument

admit, that the sovereignty of the state, in the article of tax-

ation itself, is subordinate to, and may be controlled by the

constitution of the United States. How far it has been con-

trolled by that instrument, must be a question of construc-

tion. In making this construction, no principle, not

declared, can be admissible, which would defeat the legit-

imate operations of a supreme government. It is of the

very essence of supremacy, to remove all obstacles to its

action within its own sphere, and so to modify every power

vested in subordinate governments, as to exempt its own

operations from their own influence. This effect need not

be stated in terms. It is so involved in the declaration of

supremacy, so necessarily implied in it, that the expression

of it could not make it more certain. We must, therefore,

keep it in view, while construing the constitution.

The argument on the part of the state of Maryland, is,

not that the states may directly resist a law of congress, but

that they may exercise their acknowledged powers upon it,

and that the constitution leaves them this right, in the con-

fidence that they will not abuse it. Before we proceed to

examine this argument, and to subject it to test of the con-

stitution, we must be permitted to bestow a few consider-

ations on the nature and extent of this original right of

taxation, which is acknowledged to remain with the states.

It is admitted, that the power of taxing the people and

their property, is essential to the very existence of govern-

ment, and may be legitimately exercised on the objects to

which it is applicable, to the utmost extent to which the

government may choose to carry it. The only security

against the abuse of this power, is found in the structure of

the government itself. In imposing a tax, the legislature

acts upon its constituents. This is, in general, a sufficient

security against erroneous and oppressive taxation. The

people of a state, therefore, give to their government a

right of taxing themselves and their property, and as the

exigencies of government cannot be limited, they pre-

scribe no limits to the exercise of this right, resting confi-

dently on the interest of the legislator, and on the influence

of the constituent over their representative, to guard them

against its abuse. But the means employed by the govern-

ment of the Union have no such security, nor is the right of

a state to tax them sustained by the same theory. Those

means are not given by the people of a particular state, not

given by the constituents of the legislature, which claim

the right to tax them, but by the people of all the states.

They are given by all, for the benefit of all—and upon the-

ory, should be subjected to that government only which

belongs to all.

It may be objected to this definition, that the power of

taxation is not confined to the people and property of a

state. It may be exercised upon every object brought

within its jurisdiction. This is true. But to what source do

wo trace this right? It is obvious, that it is an incident of

sovereignty, and is co-extensive with that to which it is an

incident. All subjects over which the sovereign power of a

state extends, are objects of taxation; but those over which

it does not extend, are, upon the soundest principles,

exempt from taxation. This proposition may almost be pro-

nounced self-evident.

The sovereignty of a state extends to everything which

exists by its own authority, or is introduced by its permis-

sion; but does it extend to those means which are

employed by congress to carry into execution powers con-

ferred on that body by the people of the United States? We

think it demonstrable, that it does not. Those powers are

not given by the people of a single state. They are given by

the people of the United States, to a government whose

laws, made in pursuance of the constitution, are declared

to be supreme. Consequently, the people of a single state

cannot confer a sovereignty which will extend over them.

If we measure the power of taxation residing in a state,

by the extent of sovereignty which the people of a single

state possess, and can confer on its government, we have

an intelligible standard, applicable to every case to which

the power may be applied. We have a principle which

leaves the power of taxing the people and property of a

560 ERA 4: Expansion and Reform

state unimpaired; which leaves to a state the command of

all its resources, and which places beyond its reach, all

those powers which are conferred by the people of the

United States on the government of the Union, and all

those means which are given for the purpose of carrying

those powers into execution. We have a principle which is

safe for the states, and safe for the Union. We are relieved,

as we ought to be, from clashing sovereignty; from inter-

fering powers; from a repugnancy between a right in one

government to pull down, what there is an acknowledged

right in another to build up; from the incompatibility of a

right in one government to destroy, what there is a right in

another to preserve. We are not driven to the perplexing

inquiry, so unfit for the judicial department, what degree

of taxation is the legitimate use, and what degree may

amount to the abuse of the power. The attempt to use it on

the means employed by the government of the Union, in

pursuance of the constitution, is itself an abuse, because it

is the usurpation of a power which the people of a single

state cannot give. We find, then, on just theory, a total fail-

ure of this original right to tax the means employed by the

government of the Union, for the execution of its powers.

The right never existed, and the question whether it has

been surrendered, cannot arise.

But, waiving this theory for the present, let us resume

the inquiry, whether this power can be exercised by the

respective states, consistently with a fair construction of

the constitution? That the power to tax involves the power

to destroy; that the power to destroy may defeat and ren-

der useless the power to create; that there is a plain repug-

nance in conferring on one government a power to control

the constitutional measures of another, which other, with

respect to those very measures, is declared to be supreme

over that which exerts the control, are propositions not to

be denied. But all inconsistencies are to be reconciled by

the magic of the word confidence. Taxation, it is said, does

not necessarily and unavoidably destroy. To carry it to the

excess of destruction, would be an abuse, to presume

which, would banish that confidence which is essential to

all government. But is this a case of confidence? Would the

people of any one state trust those of another with a power

to control the most insignificant operations of their state

government? We know they would not. Why, then, should

we suppose, that the people of any one state should be

willing to trust those of another with a power to control the

operations of a government to which they have confided

their most important and most valuable interests? In the

legislature of the Union alone, are all represented. The

legislature of the Union alone, therefore, can be trusted by

the people with the power of controlling measures which

concern all, in the confidence that it will not be abused.

This, then, is not a case of confidence, and we must con-

sider it is as it really is.

If we apply the principle for which the state of Mary-

land contends, to the constitution, generally, we shall find

it capable of changing totally the character of that instru-

ment. We shall find it capable of arresting all the measures

of the government, and of prostrating it at the foot of the

states. The American people have declared their constitu-

tion and the laws made in pursuance thereof, to be

supreme; but this principle would transfer the supremacy,

in fact, to the states. If the states may tax one instrument,

employed by the government in the execution of its pow-

ers, they may tax any and every other instrument. They

may tax the mail; they may tax the mint; they may tax

patent-rights; they may tax the papers of the custom-

house; they may tax judicial process; they may tax all the

means employed by the government, to an excess which

would defeat all the ends of government. This was not

intended by the American people. They did not design to

make their government dependent on the states.

Gentlemen says, they do not claim the right to extend

state taxation to these objects. They limit their pretensions

to property. But on what principle, is this distinction

made? Those who make it have furnished no reason for it,

and the principle for which they contend denies it. They

contend, that the power of taxation has no other limit than

is found in the 10th section of the 1st article of the consti-

tution; that, with respect to everything else, the power of

the states is supreme, and admits of no control. If this be

true, the distinction between property and other subjects

to which the power of taxation is applicable, is merely arbi-

trary, and can never be sustained. This is not all. If the con-

trolling power of the states be established; if their

supremacy as to taxation be acknowledged; what is to

restrain their exercising control in any shape they may

please to give it? Their sovereignty is not confined to taxa-

tion; that is not the only mode in which it might be dis-

played. The question is, in truth, a question of supremacy;

and if the right of the states to tax the means employed by

the general government be conceded, the declaration that

the constitution, and the laws made in pursuance thereof,

shall be the supreme law of the land, is empty and

unmeaning declamation.

In the course of the argument, the Federalist has been

quoted; and the opinions expressed by the authors of that

work have been justly supposed to be entitled to great

respect in expounding the constitution. No tribute can be

paid to them which exceeds their merit; but in applying

their opinions to the cases which may arise in the progress

of our government, a right to judge of their correctness

must be retained; and to understand the argument, we

must examine the proposition it maintains, and the objec-

tions against which it is directed. The subject of those

numbers, from which passages have been cited, is the

unlimited power of taxation which is vested in the general

Territorial Expansion, Political and Economic Developments, and International Relations 561